upon the time; the bona fides of such a transaction seem to be a bar to the interference of a court of equity; and if the contract be vacated by virtue of the agreement, the parties will still be in the possession of their respective rights. We may, therefore, perhaps, venture to assert, that if it clearly appear to be the intention of the parties to an agreement, that time shall be deemed of the essence of the contract, it must be so considered in equity (d).

It remains to observe, that where no time is limited for the performance of the agreement, the cases considered under the first division in this chapter, will assist the student in forming a judgment in what instances equity will assist a party who has been guilty of laches, although every case of this nature must in a great measure depend upon its own particular circumstances. The cases classed under the second division apply, however, with greater force to cases where no time is limited than to those where a day is fixed, for in the former cases, the court has not to struggle against an express stipulation of the parties.

A case came before the Lords Commissioners in 1792 (c), where no time was limited for performing the agreement. The plaintiff was one of two devisees in trust to sell. and pay debts, and had alone sold the estate (I), and entered into articles with the defendant. The co-trustee afterwards refused to join; and there was a mortgagee who refused to

(d) See Appendix, No. 6. (e) Tyrer v. Artingstall, Newl. Contr. 236; see the case in Reg.

Lib. B. 1792, fo. 28. nom. Tyrer v. Bailey.

(I) The estate was sold by auction with the concurrence of the other trustee. The plaintiff, however, only sigued the agreement.

be

be paid off. Neither of these circumstances was disclosed to the purchaser, and upon this delay in the title he proceeded to bring his action against the vendor for a breach of the agreement. The plaintiff brought his bill to compel a specific performance, and to have the co-trustee join; and the mortgage redeemed, and to stay the action. The defendant suffered an injunction to go against him for want of an answer; and having afterwards answered, a motion was made to dissolve the injunction; and the cause shewn by the plaintiff was, the possibility of making a good title by this very suit. The court held the purchaser bound, and continued the injunction,

In this case it appears from the Register's book, that the purchaser insisted on his purchase, and that the injunction should be dissolved; which was certainly a very important feature in the cause. It was not the case of a man merely seeking to recover his deposit. It must, however, be repeated, that it is impossible to lay down any general rule applicable to cases where no time is appointed for performing the agreement. Indeed, throughout this chapter, it has been found impossible to treat the subject of it in an elementary manner.

CHAP.

CHAPTER IX.

OF THE ABSTRACT AND CONVEYANCE: THE ASSIGNMENTS OF TERMS, ATTESTED COPIES AND COVENANTS FOR TITLE, TO WHICH A PURCHASER IS ENTITLED: OF SEARCHING FOR INCUMBRANCES: AND OF RELIEF IN RESPECT OF INCUMBRANCES.

SECTION I.

Of the Abstract and Conveyance.

THE vendor must at his own expense furnish the purchaser with an abstract of his muniments (I), and deduce a clear title to the estate. The abstract ought to mention every incumbrance whatever affecting the estate, and should, therefore, contain an account of every judgment by which the estate is affected (a); but equity considers it complete whenever it appears, that upon certain acts done, the legal and equitable estates will be in the purchaser; which may be long before the title can be completed (b).

(a) Richards v. Barton, 1 Esp. Ca. 268.

(b) See 8 Ves. Jun. 436.

(1) Formerly the title-deeds themselves were delivered to the purchaser, and his solicitor prepared the abstract at his expense; and the abstract was compared with the title-deeds by the counsel before whom it was laid; see Temple v. Brown, 6 Taunt. 60,

The

The abstract is delivered for the following purposes: 1st, That the purchaser may see whether the title is such as he will accept. He has also a right to it after he has taken an opinion, in order to take another opinion in case he is not satisfied with that, and for the purpose of taking further objections, and of further considering the title. He must have it too for another purpose, to assist him in preparing his conveyance, that he may see who must be made parties, what form of conveyance is expedient, what parcels are to be inserted, and the like (c). As to the general property in the abstract, it is hard to say, who may have it; while the contract is open, it is neither in the vendor nor in the vendee absolutely; but, if the sale goes on, it is the property of the vendee; if the sale is broken off, it is the property of the vendor. In the mean time the vendee has a temporary property, and a right to keep it, even if the title be rejected, until the dispute be finally settled, for his own justification, in order to shew on what ground he did reject the title (d). If the purchase go off, not only is the abstract to be returned, but no copy to be kept, lest it should be used for a mischievous purpose (e); and although the purchaser pays for the opinion, yet, for the same reason, that ought, it should seem, to be returned with the abstract (ƒ).

In a case where the purchaser returned the abstract to the seller, to answer the queries and opinion of counsel, it was held, that he (the purchaser) might maintain trover against the seller for the abstract, although the seller himself might ultimately be entitled to the abstract. The temporary property of the purchaser in the abstract was sufficient to enable him to maintain the action (g).

The seller is bound to produce the deeds, in order that the abstract may be examined with them, although they are not in his possession, and the purchaser is not to be entitled to the custody of them. But, if they are in the possession of a third person, the purchaser's solicitor, it seems, must send to the place where the deeds are, in order to examine them with the abstract, and the seller must pay the expence of the journey (h). (I).

The strict rule seems to be, that the vendor must procure the fee to be vested either in himself, or a trustee for him; and that a purchaser is not compellable to bear the expense of a long conveyance, on account of the legal estate having been outstanding for a length of time, or of the estate being subject to incumbrances which are to be paid off (i). It is not, however, very usual to insist upon this, unless the title cannot be perfected without a private act of parliament; in which case, the expense of obtaining it is always borne by the vendor.

Unless there be an express stipulation to the contrary,

(h) Sharp v. Page, Rolls, 1815, MS.

(i) See 1 H. Blackst. 280.

(I) Sale by assignees of a bankrupt. A settlement of 1763 was in the possession of a former purchaser, and there was only a covenant to produce a copy of it. A bill was filed by the assignees for a specific performance. The purchaser was informed that the settlement was in the possession of a gentleman in the country, and might be seen there. He was ready to covenant to produce it. The purchaser submitted to the Master that it was the duty of the sellers to produce the deeds stated in the abstract before the Master, or to the purchaser's solicitor in London. The Master stated, that he would make enquiry of conveyancers, what the practice in such cases was, and afterwards decided, that the purchaser's solicitor ought to send to Baldock, where the deeds were, to compare the abstract with the settlement, but that the sellers ought to pay the expences of such journey.

the